Although the Department prepared a memorandum in 2006 regarding implementation of SORNA, we determined that the memorandum reached only one of several Department components involved in implementing SORNA. Moreover, we found that the Department has no current plan to guide the components’ efforts to implement SORNA requirements. At the component level, OJP has issued software to all jurisdictions to connect sex offender public registries to the NSOPR portal, as required by SORNA, and OJP’s SMART Office also has continued to assist jurisdictions to implement enhancements to jurisdiction sex offender registry systems. However, the SMART Office took 2 years to issue implementation guidelines to the jurisdictions, and not all jurisdictions have used the software to connect their public registries to the NSOPR portal.
Other components also have taken steps to implement SORNA requirements. The United States Attorneys’ Offices and Criminal Division have assigned new and existing resources to prosecute federal fugitive sex offenders who fail to register or update a registration. The USMS has established a new investigative branch and re-assigned existing resources to increase federal investigations. The FBI has met SORNA requirements that it notify all relevant jurisdictions of updates to the NSOR database used by law enforcement and provide wider access to national crime information databases.
SORNA contains a variety of provisions for different Department components. We found that while Department components have begun implementing these SORNA provisions, not all SORNA provisions have been fully implemented. In the following sections, we describe the major requirements and the activities and progress of the Department in response to SORNA provisions.
Implementation of SORNA
We found that in August 2006 the Office of Legal Policy provided the Attorney General and Deputy Attorney General with a summary of the provisions of the Adam Walsh Act, including SORNA, which required implementation. (See Appendix IV.) The four pages of the memorandum devoted to SORNA provided a section-by-section analysis of the provisions of the Act and included recommended actions and a proposed timeline for implementing each action. The Department distributed the memorandum to OJP’s SMART Office on March 9, 2007 – 7 months after it was drafted. However, the Department did not distribute the memorandum to any other component and did not assign tasks and deadlines to components.
When asked why the memorandum was not distributed to other components charged with responsibilities under SORNA, a Senior Counsel for the Deputy Attorney General stated that the memorandum was intended to assist in implementing SORNA by providing readers a “shorthand understanding” of a section of a public law that in its entirety is more than 60 pages long. He said that the memorandum was not binding on the components because the Office of the Deputy Attorney General did not view it as a directive.
Our review of the actions taken by the components to implement SORNA found that in some instances the components had, independently, carried out or had begun to carry out elements identified in the memorandum. Yet, other actions proposed in the memorandum have not been completed and few of the timelines have been met. For example, the memorandum calls for a joint FBI–USMS effort to assist states in locating and arresting sex offenders who violate registration requirements. Such a joint effort was never developed. The memorandum also called for the SORNA implementation guidelines for the states to be issued within 6 months of SORNA’s enactment. Yet, the guidelines were not issued until July 1, 2008 – almost 2 years after the enactment of SORNA. The memorandum also stated that in response to Section 120 the capability for a NSOPR portal user to identify sex offenders located within a given distance of a specific address (geographic radius query) be implemented within 6 months of the enactment of SORNA. However, software for that capability was not issued until July 25, 2008.
The Department also did not prepare a more formal memorandum for dissemination to the other components apart from the memorandum it provided to the SMART Office in March 2007. In fact, as of October 2008 there still was no written Department-level plan for accomplishing the actions required to implement SORNA. Because the Department did not issue any directives to the components, the components have not been accountable for implementing the recommended tasks within the timelines contained in the memorandum. Although SORNA includes a deadline for jurisdiction implementation of its requirements, it only imposes reporting deadlines for the Department. Thus, without any directives from the Department, the Department’s components have set their own pace in implementing SORNA.
Despite the components not receiving any formal directive, as we describe in the following sections, OJP, the USAOs, the Criminal Division, the USMS, and the FBI have made significant progress with implementing many SORNA provisions. However, the Department has not fully implemented SORNA provisions essential to making the sex offender registration and notification system complete and accurate.
OJP has issued software to jurisdictions to connect all public sex offender registries to the NSOPR portal and is assisting the jurisdictions in implementing SORNA requirements.
As discussed below, OJP has largely addressed its requirements under SORNA to assist jurisdictions with improvements to the NSOPR portal and is continuing to assist jurisdictions in improving their registration systems. The jurisdictions also have responsibilities under SORNA, but the Department’s only mechanism for enforcing compliance is to reduce states’ Edward Byrne Memorial Justice Assistance Grant Program funding by 10 percent or to require Indian tribes to delegate their SORNA responsibilities to the states in which the reservations are located.17 However, OJP did not issue guidelines to jurisdictions on implementing SORNA until July 1, 2008. The SMART Office continues to assist Indian tribes to establish registration systems accessible through the NSOPR portal. The SMART Office has also not implemented a system to ensure that registered sex offenders leaving the United States or sex offenders with foreign sex offense convictions entering the United States comply with registration requirements. The SMART Office has initiated a program to provide grants to jurisdictions to assist them with implementing SORNA requirements.
The SMART Office is assisting states with implementing enhancements to state public registry systems, some of which are required by SORNA, but these enhancements have not yet been completed.
In Section 120, SORNA required the Department to improve the NSOPR portal by (1) re-designating NSOPR as the “Dru Sjodin National Sex Offender Public Website”; (2) expanding NSOPR to include information on sex offenders from all states, U.S. territories, and tribes; and (3) providing the public with the capability to obtain, with a single query, information for each sex offender in any given zip code or geographical radius within 3 miles of an address set by the user.18 In our review we found that OJP had renamed the NSOPR portal and was close to completing its required expansion. The NSOPR portal now provides access to sex offender public records from all 50 states, the District of Columbia, Guam, and Puerto Rico. Access to the records from American Samoa, the Northern Mariana Islands, and the U.S. Virgin Islands was to be provided by July 2008, but as of October 2008 was still unavailable. The SMART Office is working with a contractor to create websites for these territories, as well as 197 Indian tribes that are not currently included on the NSOPR portal.
The Director of the SMART Office stated that a geographic radius search developed for the NSOPR portal will allow users to search for all registered sex offenders within 3 miles around a specific address. During our analysis of data available on public registries through the NSOPR portal, we identified 16 states in which a similar mapping feature was available. BJA and SMART Office staff told us that because NSOPR is only a portal to the individual jurisdiction public registries, implementation of the radius search capability will require the jurisdictions to install new software on each of their registries. Consequently, the SMART Office has entered into a 2-year unlimited use contract with a private mapping vendor to provide geographic radius search software to the jurisdictions. On July 25, 2008, the SMART Office made geographic radius search software available to all registration jurisdictions, including states, territories and tribes.19
OJP took 2 years to issue implementation guidelines.
On July 1, 2008, the SMART Office issued the guidelines required by Section 112(b) to inform the jurisdictions of the actions they must take to comply with SORNA.20 Prior to the creation of the SMART Office, 6 months after the signing of the Adam Walsh Act, an attorney with the Office of Legal Policy began drafting the guidelines required by SORNA. The attorney said he began drafting these guidelines because he had experience with sex offender registration issues when the Wetterling Act was enacted in 1994. The attorney brought state registry, law enforcement, and corrections representatives together at a symposium to explain SORNA and obtain their comments on the guidelines. He also conducted presentations on SORNA standards and received feedback from jurisdictions that included advice on implementing the guidelines. The attorney continued working on the guidelines with the SMART Office once it became operational at the end of 2006.
The Director of the SMART Office told us that the guidelines went through extensive review and revisions before publication. The Director explained that the SMART Office received over 275 comments (approximately 600 pages) during the public comment period and that there was considerable discussion with the components regarding revision and editing of the final guidelines. Table 2 provides a timeline of the development of the guidelines.
Table 2: Development of the Implementation Guidelines
|The Smart Office opened.||December 18, 2006|
|Draft of proposed guidelines underwent component review.||April 30 – May 2, 2007|
|Final draft of the proposed guidelines signed by the Associate Attorney General and forwarded for the Attorney General’s signature.||May 14|
|Final proposed guidelines signed by the Attorney General.||May 17|
|Proposed guidelines published in the Federal Register.||May 30|
|Public comment period held.||May 30 – August 1|
|Comments reviewed and final guidelines edited.||August 2, 2007 – January 31, 2008|
|Final guidelines sent for component review.||February 1 – February 15|
|Component comments incorporated. Revisions made and final guidelines edited.||February 16 – April 29|
|Action memo with final guidelines attached signed by the Associate Attorney General. The Attorney General’s approval and signature requested.||April 30|
|Final guidelines signed by the Attorney General.||June 23|
|Final guidelines announced by the Attorney General.||July 1|
In SORNA, Congress established a deadline of July 27, 2009, for state, territorial, and tribal jurisdictions to meet or exceed the requirements of the Act.21 The guidelines define jurisdiction compliance as follows:
SORNA § 125 refers to “substantial” implementation of SORNA. The standard of “substantial implementation” is satisfied with respect to an element of the SORNA requirements if a jurisdiction carries out the requirements of SORNA as interpreted and explained in these Guidelines. Hence, the standard is satisfied if a jurisdiction implements measures that these Guidelines identify as sufficient to implement (or “substantially” implement) the SORNA requirements.
The guidelines state that the SMART Office is responsible for determining whether individual states, Indian tribes, and territories are substantially compliant and for providing technical support to these jurisdictions to help them become substantially compliant with SORNA.
The Director of the SMART Office told us that the guidelines were written so that jurisdictions could achieve compliance with each SORNA provision in their own way. For example, the Director said that a jurisdiction’s tier system of registration requirements would not have to exactly match the registration requirements in SORNA.22 Instead, SORNA requirements are a minimum that jurisdictions must meet. The Director said Florida law regarding the length of registration meets SORNA standards by requiring lifetime registration for all sex offenders, not just Tier III sex offenders, as stipulated in SORNA. Any jurisdiction that has registration requirements that are not at least as long as SORNA’s for all tiers of sex offenders based on convictions is not substantially compliant with SORNA.
SORNA (Section 125(b)) also includes provisions for cases in which a jurisdiction’s constitution is in conflict with SORNA requirements.23 If a jurisdiction believes that it faces such a situation, it is to inform the SMART Office, which will assist the jurisdiction to attempt to overcome the problem as the statute provides. If it is not possible to overcome the problem, the SMART Office may approve the jurisdiction’s adoption of reasonable alternative measures that are consistent with the purposes of SORNA. The Director explained that substantial compliance submissions to the SMART Office should identify elements of a jurisdiction’s registration and notification procedures that are different from those specified in SORNA and explain why the jurisdiction’s procedures should not be considered a failure to substantially implement SORNA.
Also, the guidelines explain that a jurisdiction’s “program cannot be approved as substantially implementing the SORNA requirements if it substitutes some fundamentally different approach to sex offender registration and notification that does not incorporate SORNA’s baseline requirements – e.g., a ‘risk assessment’ approach.” The Director of the SMART Office said that a jurisdiction that bases its classification of sex offenders on a risk assessment system rather than on the offense of conviction would not be SORNA compliant. During our analysis of data available on public registries through the NSOPR portal, we identified eight states in which the registration requirement was still based at least partially on an assessment of the offender’s risk of re-offending.24
In July 2008, OJP provided a checklist that the jurisdictions can use to prove they are in compliance with SORNA. The checklist was also intended to assist the SMART Office in assessing the jurisdictions’ compliance submissions when considering extension requests and when considering funding reductions for non-compliance. Section 124 of SORNA authorizes the jurisdictions to request, and the Attorney General to grant, up to two 1-year extensions beyond the deadline.25 As of October 3, 2008, 26 states, territories, and Indian tribes had submitted information for review, an extension request, or both to the SMART Office. The jurisdictions submitted information on preliminary compliance efforts, proposed and model legislation, changes to the tier system of registration requirements, and evidence of substantial compliance efforts. (See Appendix II.) As of October 3, 2008, four states had submitted requests for extensions.
The Director of the SMART Office said that substantial compliance will vary depending on specific issues associated with each jurisdiction’s laws. Plans and processes for implementation will vary with each jurisdiction. She said the SMART Office provides ongoing assistance to jurisdictions as they are making policy decisions regarding meeting the minimum requirements for substantial compliance. The SMART Office then considers on a case-by-case basis whether jurisdiction sex offender registration and notification procedures follow the provisions of SORNA by assessing whether the departure from a specific SORNA requirement will or will not substantially accomplish the objectives of the requirement.
Section 125 of SORNA also directs the SMART Office to penalize states for not complying with the provisions of SORNA.26 Specifically, states are subject to losing 10 percent of the funds they receive through the Edward Byrne Memorial Justice Assistance Grant Program if the SMART Office determines that they are not in compliance with SORNA by July 27, 2009. Any funding reductions are not scheduled to take effect until FY 2010, at the earliest.
The Director of BJA said that because OJP took 2 years to issue the guidelines, jurisdictions may not have time to comply by the July 27, 2009, deadline for implementing SORNA. In addition, the Director stated that the threat of losing 10 percent of Byrne grant money may not be an effective inducement for state compliance because it may cost some states more to comply than they might lose for not complying.27 NCMEC officials also noted that several states had informed NCMEC that they believed their current programs already fulfill their SORNA requirements. The officials said that if the states’ current programs are found not to be compliant, the states still do not plan on implementing new procedures or upgrading their systems because they did not receive any money at the time of SORNA’s enactment (see the SOMA section below). NCMEC officials also said that the states view the guidelines as optional and therefore believe it is up to them whether they will follow the guidelines in implementing SORNA. NCMEC added that representatives from one state law enforcement agency stated they have questions regarding the definition of “substantially compliant” because there are provisions of SORNA that they will not implement. The former USMS Sex Offender Investigations Branch Chief Inspector also raised the possibility that states could choose not to comply. However, as of October 28, 2008, the SMART Office had not received an official declaration from any jurisdiction indicating that it will not substantially comply with SORNA.
The SMART Office has not implemented a system to track sex offenders entering or leaving the United States.
Section 128 of SORNA directs the Attorney General to create a system for informing the states about individuals entering the United States who have been convicted of sex offenses in foreign countries and who are required to register in the United States.28 The SMART Office guidelines state that those individuals must register within 3 days of their arrival in the jurisdictions where they will live, work, or go to school. The jurisdictions then follow the same procedure they use for initial registration of domestic sex offenders. After initial registration, the jurisdiction must immediately forward the registration information to any other jurisdiction in which the sex offender is required to register.
In addition, the guidelines require that jurisdictions’ registries include passport information on sex offenders. The guidelines state that having this information in the registries helps to:
- Locate and arrest registrants who may attempt to leave the United States after committing new sex offenses or registration violations,
- Facilitate the tracking and identification of registrants who leave the United States but later re-enter while still required to register (which specifically addresses Section 128 requirements), and
- Cross-check the accuracy and completeness of other types of information that registrants are required to provide.
Further, according to the guidelines a jurisdiction must notify the Department when sex offenders inform the jurisdiction that they intend to live, work, or go to school in a foreign country. The jurisdiction in which an offender originally registers must also inform other jurisdictions in which the offender is registered, as well as the USMS, and update the sex offender’s information in national databases pursuant to Section 121(b)(1) of SORNA.29
The Director of the SMART Office stated that she has discussed several issues involving individuals with convictions for foreign sex offenses with INTERPOL and the USMS, including (1) maintaining accurate information about registered sex offenders who travel outside of the United States, (2) the need for a federal law enforcement collaboration to track sex offenders, and (3) notifying foreign jurisdictions of sex offenders entering their countries.30 The Director also stated that the SMART Office is reviewing the current processes, policies, and resources that could be employed to assist in the international notification process, including determining how the NSOPR portal can be used to track sex offenders that travel internationally.31
The SMART Office has begun to implement the Sex Offender Management Assistance Program.
Section 126 of SORNA requires the Attorney General to establish a Sex Offender Management Assistance (SOMA) program to help jurisdictions offset the costs of implementing SORNA.32 The Director of the SMART Office said that SOMA was intended to provide grants to jurisdictions to assist them with implementing SORNA requirements and that the SMART Office received $25 million for this purpose for FY 2007. In addition, in FY 2008, the SMART Office received $4.16 million for SOMA through the Department’s Office of Community Oriented Policing Services (COPS).33 In April 2008, the SMART Office issued a solicitation for grant requests from state and local jurisdictions and federally recognized Indian tribes for funding to implement SORNA.34 Eligible applicants were required to submit application packages by early May. As of June 12, 2008, the SMART Office had received 96 applications for funding. The Director said the SMART Office used an outside independent peer review panel to review the proposals and rate each based on its content and viability. Based on the panel’s reviews, the SMART Office awarded 26 state, local, and tribal entities funding to implement Adam Walsh Act provisions, including SORNA (Table 3).
Table 3: Adam Walsh Act Implementation
Grant Program Grantee List
|St. Landry Parish Sheriff’s Department||Louisiana|
|City of Allen Park||Michigan|
|State of Wisconsin||Wisconsin|
|Alabama Department of Corrections||Alabama|
|Indiana Department of Correction||Indiana|
|Tangipahoa Parish Sheriff’s Office||Louisiana|
|Fort Peck Assiniboine & Sioux Tribes||Montana|
|City of Hartford||Connecticut|
|State of New Hampshire Department of Safety||New Hampshire|
|Pueblo of Acoma Police Department||New Mexico|
|Tonkawa Tribe of Oklahoma||Oklahoma|
|South Carolina Law Enforcement Division||South Carolina|
|Miami Tribe of Oklahoma||Oklahoma|
|Santee Sioux Tribe of Nebraska||Nebraska|
|Penobscot Indian Nation||Maine|
|Government of the Virgin Islands||Virgin Islands|
|St. Lucie County Sheriff’s Office||Florida|
|St. Regis Mohawk Tribe||New York|
|Northern Cheyenne Tribe||Montana|
|Turtle Mountain Band of Chippewa Indians||North Dakota|
|Chicago Police Department||Illinois|
|White Mountain Apache Tribe||Arizona|
|West Valley City||Utah|
|Mississippi Band of Choctaw Indians||Mississippi|
The SMART Office is assisting jurisdictions in implementing SORNA requirements through technical enhancements to the NSOPR portal.
Many of the requirements contained in SORNA are applicable to the jurisdictions, not the Department. While the efforts of the jurisdictions to meet their SORNA requirements are beyond the scope of this review, we examined the efforts of the SMART Office to assist the jurisdictions in meeting their requirements. As discussed below, these include the SMART Office’s efforts to develop a “Common Space” in the NSOPR portal to enable the jurisdictions to better share information, develop software that the jurisdictions can use to provide the public with automatic notifications of updated sex offender information, and provide public users the capability to search sex offender e-mail addresses.
Establishing a “Common Space” Online. Section 121 of SORNA requires that, after a sex offender registers or updates a registration, an appropriate official in the jurisdiction shall immediately provide the information to other jurisdiction registries.35 The Director of the SMART Office stated that Section 121 is one of the most difficult legislative requirements of SORNA for the jurisdictions to implement because state systems are not compatible with each other. To assist the jurisdictions with making the required notifications, the SMART Office developed a “Common Space” in the NSOPR portal that is available to only authorized law enforcement and other personnel.
The Director of the SMART Office and a Senior BJA Program Analyst described the “Common Space” as a means for law enforcement to exchange information on registered sex offenders over a secure, password-protected network. For example, if a registered sex offender moves from jurisdiction A to jurisdiction B, jurisdiction A would notify jurisdiction B of the transfer and provide the date that the sex offender should report. If the registered sex offender failed to report within 72 hours of moving to jurisdiction B, the NSOPR portal would automatically notify both jurisdictions that the sex offender had not complied with registration obligations and, if probable cause existed, a warrant could be issued and the sex offender could be registered as a fugitive. The Common Space will also provide users with administrative tools such as shared document libraries and blogs to exchange information (see text box). The Common Space became operational on July 25, 2008.
Providing Automatic Notification Software. Section 121 of SORNA requires jurisdictions to establish notification systems that automatically notify members of the public when changes are made to the registration records of sex offenders in their areas.36 To meet this requirement, the SMART Office developed software for jurisdiction registries that enables public users to enter their e-mail and physical addresses in a jurisdiction’s public registry. Users are automatically notified by e-mail of new or updated sex offender registrations in their vicinity. The SMART Office made automatic notification software available to all states, territories, and tribes on July 25, 2008.
Developing a Sex Offender E-Mail Address Search Capability. The SMART Office is developing a search capability for state registries available through the NSOPR portal that will allow users to check whether specific e‑mail addresses belong to registered sex offenders. This feature, for example, will allow parents to determine if e‑mail messages sent to their children are from registered sex offenders. The SMART Office plans to begin testing this search capability once the jurisdictions start collecting e‑mail addresses of registered sex offenders, as required by SORNA.
The SMART Office is helping Indian tribes meet SORNA requirements.
Section 127 of SORNA requires federally recognized Indian tribes to decide whether they will carry out SORNA provisions themselves or delegate sex offender registration and notification responsibilities to the states in which the tribes reside.37 However, not all federally recognized tribes are eligible to make this election.38 The Director of the SMART Office said only 212 of the 562 (38 percent) federally recognized Indian tribes fit the criteria specified in Section 127 of SORNA and are eligible to choose to carry out SORNA provisions or delegate sex offender registration and notification responsibilities to the states in which the tribes are located.
The Director said that as of March 31, 2008, 197 of the 212 eligible tribes had elected to implement SORNA requirements, submitted the required tribal resolution to the SMART Office, and will have the same sex offender registration and notification responsibilities as a state.39 After electing to implement SORNA, a tribe may rescind its election to function as a registration jurisdiction, in which case the registration function is delegated to the state.
The SMART Office plans to make tribal sex offender registries accessible through the NSOPR portal by July 2009. However, the Director said that she anticipates that the tribes will need deadline extensions for establishing sex offender registries and that she has explained to several tribes that, to receive extensions, they may have to demonstrate progress. Complicating SORNA implementation is the fact that some tribes do not have automated sex offender registration records.
According to the Director, eligible tribes have three options in establishing registries. First, several tribes may form a consortium to develop and share a sex offender registry, which could save development and administrative costs. Second, a tribe may enter into a cooperative agreement with a state for pooling or sharing responsibilities for maintaining the registry for the tribal land (jurisdiction). Third, the SMART Office has funded and developed a web-based registry that tribes and remaining territories can populate with their jurisdictions’ sex offender information so that it can be added to the NSOPR portal. The Director said the SMART Office has been encouraging tribes to use the second option to comply with SORNA.40
The Assistant U.S. Attorney (AUSA) detailed to the SMART Office said the office is working on technical issues related to how the NSOPR portal will be altered to provide access to the sex offender information of tribes that have chosen to implement SORNA provisions. In addition, the AUSA said the office is working with the FBI to facilitate tribal access to NCIC and NSOR via state systems. Some states do not recognize tribes and therefore will not allow them access to NCIC or NSOR.
In testimony before the Senate Committee on Indian Affairs, the Executive Director of the National Congress of American Indians discussed a 2002 Bureau of Justice Statistics census of tribal justice agencies that found only 54 tribes were entering information on tribal sex offenders into NSOR, less than half of tribal justice agencies had access to NCIC (and NSOR), and only 14 tribes reported that they were routinely sharing crime statistics with state or local government or the FBI.
During that July 2008 hearing before the Senate Committee on Indian Affairs, the Executive Director and representatives from four confederated tribal bands and tribal nations described the difficulties Indian tribes have concerning how the SMART Office will evaluate the implementation of Section 127 of SORNA. In addition, tribes testified that they believe increased expansion of state authority will ultimately result in additional confusion of criminal jurisdiction on tribal lands and diminish cooperation between the states and tribes regarding law enforcement.
The SMART Office issued the annual report to Congress on the enforcement of registration requirements.
Section 635 of the Adam Walsh Act requires the Attorney General to submit an annual report to Congress on the enforcement of sex offender registration requirements.41 The report is to include a detailed explanation of the use of the USMS to assist states in locating and arresting fugitive sex offenders, the use of 18 U.S.C. § 2250 to punish offenders who fail to register, each state’s compliance with SORNA, the Department’s efforts to ensure compliance, and the denial or grant of any extensions to comply with SORNA. The first annual report was due July 1, 2007, but it was not submitted. We found that the SMART Office was assigned responsibility for developing the report on April 23, 2008, and issued it to Congress in October 2008.
The United States Attorneys’ Offices and Criminal Division have assigned new and existing resources to prosecute federal fugitive sex offenders who fail to maintain current registrations.
We found that in response to SORNA requirements, AUSAs in USAOs and Trial Attorneys within the Criminal Division have been coordinating efforts. Also, the Department provided additional resources, including 43 new AUSAs, to prosecute SORNA registration violations, along with child pornography and exploitation crimes. Among these efforts, federal attorneys, through the Department’s Project Safe Childhood initiative and the Criminal Division’s Child Exploitation and Obscenity Section (CEOS) are developing policy and assisting with litigation.42 CEOS consults with and provides advice to AUSAs regarding the legal issues, notification requirements, and increased penalties associated with SORNA. AUSAs may request assistance with a specific prosecution if their offices lack the resources or the expertise. CEOS can help AUSAs examine the circumstances surrounding a case and the options available to them to determine an effective prosecution strategy.
CEOS has provided policy assistance to federal attorneys for interpreting SORNA provisions, including notification requirements and enhanced sentencing penalties.
Section 117 of SORNA requires that an appropriate official notify sex offenders of their registration duties under SORNA and obtain signed acknowledgements that the offenders are aware of their registration obligations.43 In addition, Section 141 of SORNA amended the federal criminal code to impose a fine or a prison term of up to 10 years or both upon convicted sex offenders for failure to register or update a registration. It also increased criminal penalties for sex offenders who do not register and commit a crime of violence, imposes increased criminal penalties for making false statements in a sex offense registration or in connection with certain sex crimes against children, modifies probation and supervised release provisions for sex offenders required to register, and requires the Federal Bureau of Prisons to inform sex offenders released from prison of their requirements to register.44
In response to these requirements, CEOS assisted with the development of guidance for federal prosecutors regarding these and other provisions of the Adam Walsh Act. The Deputy Attorney General issued the guidance to AUSAs in February 2007. A CEOS Trial Attorney said that based on the guidance, CEOS created and distributed forms for AUSAs to use in indictments and plea agreements with sample language for notifying offenders of their responsibilities to register. He added that the suggested language within plea agreements or probation agreements suffices as notification of obligations. In addition, the guidance also included an explanation of the enhanced sentencing for failure to register or update a registration established in Section 141 of SORNA.
The Chief of CEOS said that at the time that SORNA was enacted, federal attorneys were rarely involved in prosecuting sex offenders for failure to register or update a registration and therefore were not well-versed in those types of cases. For this reason, CEOS wanted to provide assistance to federal attorneys quickly after SORNA was enacted. CEOS worked with the Deputy Attorney General, Office of Legal Policy, and the Executive Office for United States Attorneys to develop the guidance discussed above for providing AUSAs with background on SORNA to prosecute cases. EOUSA representatives we interviewed attributed the success of federal fugitive sex offender prosecutions since SORNA (discussed in Section III of this report) in part to CEOS’s expertise in prosecuting child exploitation cases.
Federal attorneys broadened the Department’s Project Safe Childhood to prosecute fugitive sex offenders.
Section 143 of SORNA directs the Department to make several enhancements to the Project Safe Childhood initiative.45 These enhancements are: (1) coordinate, investigate, and prosecute child exploitation cases; (2) increase federal involvement in child pornography and enticement cases; (3) participate in community awareness and educational programs; (4) establish new Internet Crimes Against Children task forces; and (5) provide increased prosecutorial support to the FBI’s Innocent Images task forces. In response, the Department announced in May 2008 that it was distributing $5 million in new funds to Project Safe Childhood. A Department press release stated that the “money will fund 43 new AUSA positions across the nation to prosecute these offenses” and facilitate Project Safe Childhood efforts. As of October 2008, EOUSA was in the process of determining how to allocate the new AUSA positions among districts. EOUSA planned to make its decisions about allocating the new attorneys based on child exploitation caseload data from the Project Safe Childhood initiative and narratives submitted by each district describing its work in the area. The child exploitation caseloads include not only SORNA offenses but also child pornography offenses, sexual abuse of children within federal jurisdiction, sex trafficking of children, buying or selling children, online coercion and sexual enticement of children, transmitting information about a minor, and several other related offenses.
USAOs and Criminal Division are coordinating component efforts to investigate Internet crimes against children.
Section 145 of SORNA expands training and cooperative activities related to Internet crimes against children and expands the deployment of technology to track and deconflict child exploitation investigations.46 In response, the FBI, USMS, EOUSA, Criminal Division, and two federal agencies outside the Department – the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) and the U.S. Postal Inspection Service – entered into a Memorandum of Understanding (MOU) to deploy and implement the Cyber Safe Deconfliction system. That automated system will allow the agencies to identify potentially overlapping investigations, avoid duplication of effort, and coordinate investigative efforts.
To implement the MOU, in June 2008 the Department’s Associate Attorney General issued a memorandum establishing procedures for information sharing among the Department’s Internet Crimes Against Children (ICAC) Task Forces. The memorandum directs the BJA and the Office of Juvenile Justice and Delinquency Prevention to work together with state and local ICAC task force partners to establish the Cyber Safe Deconfliction system and a second system known as the ICAC Virtual Headquarters. The ICAC Virtual Headquarters is intended to establish a secure environment for law enforcement and provide communication tools, as well as online training resources, for ICAC task forces.
The USMS has established a new investigative branch and reassigned existing resources to increase federal investigations under SORNA, but has not yet implemented a planned targeting center.
Section 142 of SORNA requires the Attorney General to “use the resources of Federal law enforcement, including the United States Marshals Service, to assist jurisdictions in locating and apprehending sex offenders who violate sex offender registration requirements.”47 Because SORNA did not provide the USMS with any additional resources, the USMS realigned existing resources to carry out its responsibilities.48 In August 2006, the USMS established a Sex Offender Investigations Branch at its headquarters to manage sex offender investigations in the field and designated a sex offender investigations coordinator in each district and Regional Fugitive Task Force. In addition, the USMS coordinated with Criminal Division attorneys to issue guidance for Deputy Marshals for use in criminal investigations of fugitive sex offenders. The USMS also entered into an MOU with the Federal Emergency Management Agency to identify, locate, and arrest fugitive sex offenders after major disasters; increased support to NCMEC; and plans to establish the National Sex Offender Targeting Center.
The USMS established the Sex Offender Investigations Branch at USMS Headquarters to manage sex offender investigations.
The USMS established the Sex Offender Investigations Branch at its headquarters to direct and coordinate USMS efforts to implement SORNA. The proposed staffing for the Sex Offender Investigations Branch included 500 USMS investigators and 125 administrative staff nationwide over 5 years. These positions would be placed across the United States based on sex offender populations and crime statistics. However, the USMS currently has only two persons assigned to the branch. A former Chief Inspector with the Sex Offender Investigations Branch said that funding for its operations came from other activities within the USMS Investigative Services Division. The USMS created the positions in the new branch by transferring its one position from INTERPOL and one of its positions on the Department’s Organized Crime Drug Enforcement Task Force. The USMS Task Force Operations Chief said that the USMS requested, but did not receive, more Sex Offender Investigations Branch positions for FY 2008 to support USMS fugitive sex offender investigations efforts.
The Acting Assistant Director of the USMS Investigative Services Division described two initiatives the Sex Offender Investigations Branch is developing for identifying and arresting fugitive sex offenders. One proposal is a national Operation FALCON targeting sex offenders.49 The other proposal describes a state-led operation in which the USMS will work with state and local law enforcement to identify fugitive sex offenders and build cases for possible federal charges under 18 U.S.C. § 2250.
The USMS designated sex offender investigations coordinators to assist in state and local law enforcement investigations of fugitive sex offenders.
The USMS designated sex offender investigations coordinators in each of the 94 judicial districts and its 6 Regional Fugitive Task Forces to assist in implementing SORNA and to establish and maintain contacts with state sex offender registration authorities, corrections officials, and other agencies, including the USAOs. Throughout 2007, the USMS provided several versions of a week-long course with NCMEC on implementing SORNA, which trained the approximately 200 Deputy Marshals who are designated as sex offender investigations coordinators. The training covered the legal requirements of SORNA, investigative techniques, resources, and background information relevant to sex offender investigations to help local law enforcement carry out their responsibilities under SORNA. The Sex Offender Investigations Branch Chief said at least 30 coordinators have provided this training to their state and local law enforcement partners.
Because the USMS did not receive any new positions to carry out the agency’s responsibilities under SORNA, the Sex Offender Investigations Branch depends on district Deputy Marshals who serve as coordinators as a collateral responsibility. According to the Sex Offender Investigations Branch Chief, because the coordinators are district employees under the control of the U.S. Marshal in charge of each district, headquarters officials cannot directly assign them to work fugitive sex offender investigations exclusively.
The USMS worked with Department attorneys to develop guidance to assist Deputy Marshals in their investigation and arrest of fugitive sex offenders.
The USMS’s General Counsel worked with attorneys of the Criminal Division and the Office of Legal Policy to develop guidance to assist Deputy Marshals in investigating and arresting fugitive sex offenders. The guidance describes the new federal registration violations under 18 U.S.C. § 2250 and the evidence necessary to prove that an individual violated the law. The guidance also includes an overview of the decision process by which offenders will be federally charged and prosecuted.
The USMS entered into an MOU with the Federal Emergency Management Agency to investigate displaced sex offenders.
Section 144 of SORNA directs the Attorney General to provide assistance to states in identifying and locating sex offenders displaced as a result of major disasters.50 To implement this provision, the USMS and the Federal Emergency Management Agency (FEMA), a component of the Department of Homeland Security, entered into an MOU that became effective July 30, 2007.
The MOU provides the USMS with access to FEMA’s relocation database to enable the USMS to more quickly locate displaced sex offenders. The MOU requires that when possible the USMS contact the state registry authorities prior to major disasters to ensure that a current and a back-up database of registered sex offenders are available so that the USMS can readily obtain the information needed to identify and track displaced sex offenders immediately after a disaster occurs. The Director of the SMART Office cited the success of the USMS in locating missing sex offenders after Hurricane Katrina as evidence of the value of having information on registered sex offenders readily available. The Director stated that after Hurricane Katrina the USMS used FEMA data to locate 202 of 206 missing sex offenders.
The USMS increased support to the National Center for Missing and Exploited Children for fugitive sex offender investigations.
A Senior Inspector with the USMS Sex Offender Investigations Branch said that the USMS’s working relationship with NCMEC is stronger and the cooperation between the two agencies has increased because of SORNA. The Director of the NCMEC Case Analysis Division confirmed that the support provided by the Deputy Marshal assigned to NCMEC has increased since the enactment of SORNA. Prior to the enactment of SORNA, one full-time Deputy Marshal was detailed to and located at NCMEC, and the Deputy Marshal primarily assisted with missing children cases. Since the enactment of SORNA, the Deputy Marshal has increased his efforts to identify and locate fugitive sex offenders by assisting NCMEC’s Sex Offender Tracking Team. The Director of the NCMEC Case Analysis Division said the Sex Offender Tracking Team receives requests directly from law enforcement to assist in locating fugitive sex offenders. The Sex Offender Tracking Team conducts public records searches using search tools available through the Internet. She said that about 50 percent of the team’s information requests are from the USMS and about 50 percent are from state and local law enforcement agencies. The Deputy Marshal told us that he reviews and evaluates leads that come into the NCMEC tip line and sends those warranting further investigation to the appropriate law enforcement agencies for investigation.
The USMS plans to establish a National Sex Offender Targeting Center.
The USMS, with support from NCMEC, is planning to establish an inter-agency intelligence and operations center to support the identification, investigation, location, arrest, and prosecution of fugitive sex offenders, which will be known as the National Sex Offender Targeting Center. According to the USMS Sex Offender Investigations Branch Chief, the center will assist federal, state, local, and foreign law enforcement agencies by supplementing and coordinating state and local efforts to identify and arrest fugitive sex offenders. The center’s objectives include working with ICE’s Operation Predator to refer sex offenders who are citizens of other countries for removal proceedings and coordinating the exchange of information between state sex offender registries and other federal agencies.51
A USMS Assistant Director described the center as a “one-stop-shop fusion center” for locating and arresting fugitive sex offenders. According to USMS operational plans for the center, it would accomplish its objectives by:
- Using government, non-governmental, and commercially available databases and software to identify non-compliant sex offenders;
- Analyzing leads concerning non-compliant sex offenders, particularly those with an interstate or foreign nexus, and referring them to the appropriate federal, state, local, or foreign law enforcement authorities for appropriate action;
- Providing analytical and case support for sex offender non-compliance and fugitive investigations;
- Facilitating information sharing among federal, state, local, and foreign law enforcement agencies engaged in sex offender investigations, as well other organizations;
- Serving as a national point of contact for state and local sex offender registration authorities for law enforcement matters associated with the implementation of the Adam Walsh Child Protection And Safety Act of 2006;
- Supporting and coordinating national and regional sex offender arrest initiatives; and
- Coordinating with Crime Stoppers USA to create a national tip line for information on sex offenders.52
The USMS also plans to establish a Behavioral Analysis Unit as part of the center that would focus on:
- Targeting and interviewing strategies;
- Helping investigators present cases to prosecutors;
- Promoting officer safety by psychologically profiling sex offenders;
- Researching medical and behavioral information about sex offenders;
- Training investigators; and
- Prioritizing cases.
The Behavioral Analysis Unit staff would include a psychologist who specializes in profiling sex offender behavior. The psychologist also would provide counseling services to staff involved in fugitive sex offender investigations.
In the USMS’s FY 2008 budget request, the USMS asked for the equivalent of 27 full-time positions and $7.8 million to begin deploying additional staff to areas of the country that have large numbers of fugitive sex offenders and to staff the center in partnership with NCMEC. The USMS did not receive the requested funding. However, in July 2008, as part of the Global War on Terror supplemental appropriations bill, the USMS received $16.9 million to implement its responsibilities within the Adam Walsh Act, including establishing the National Sex Offender Targeting Center.
The FBI has met SORNA requirements to provide electronic notification updates to NSOR and provide access to national crime information databases.
The FBI has met the SORNA requirement that sex offender registration information be updated and electronically transmitted to relevant states. We also found that the FBI issued guidance that will enable NCMEC and certain government social service agency personnel who have met training, certification, and background screening requirements to access FBI criminal information databases. In addition, the FBI indicated to us that it is willing to provide the USMS with complete electronic files of NSOR and NCIC Wanted Persons File data for use in fugitive sex offender investigations.
The FBI has complied with SORNA provisions requiring the reporting of changes to sex offender information in NSOR.
Section 119(b) of SORNA requires the Attorney General to ensure through NSOR or another mechanism that updated information about a sex offender be immediately transmitted electronically to all relevant states.53 We found the Department had already implemented these capabilities as part of the Jacob Wetterling Act of 1996. An FBI NCIC Program Analyst and the FBI’s NSOR Management Analyst told us that when an agency enters, modifies, or deletes a record that has the same FBI number as a record already in NSOR, the system sends an automatic message to the state that entered the existing record alerting it to the new registration activity. If a sex offender moves from one state to another, the state the offender is moving to will automatically receive a message that includes the updated registry information so that that state can update its registry. This electronic notification system fulfills the requirement under SORNA.
The FBI has complied with SORNA provisions requiring access to national crime information databases.
Sections 151, 152, and 153 of SORNA require the FBI to provide access to FBI criminal information databases for NCMEC personnel and certain government social service agency personnel who have met training, certification, and background screening requirements.54 In response, the FBI issued guidance that provides NCMEC personnel and certain government social service agency personnel access to its criminal information databases. Section 151 of SORNA requires that the Department provide NCMEC and other government social service agencies with child protection responsibilities with access to national crime information databases.55 The guidance also implements Section 152, which requires that prospective foster or adoptive parents have their fingerprints checked against state child abuse and neglect registries in the national crime information databases. Finally, the guidance implements Section 153 of SORNA by directing the FBI’s Criminal Justice Information Services (CJIS) Division to enable government social service agencies, welfare and education agencies, and schools to conduct fingerprint-based checks on employees or applicants who would work with or around children.
The FBI will provide the USMS with NSOR and NCIC Wanted Persons File data, if requested.
In addition to the increased access to criminal history information described above, the FBI indicated to us that it is also willing to provide the USMS with complete electronic files of NSOR and NCIC Wanted Persons File data for use in fugitive sex offender investigations, provided the request is within the technical parameters allowed through NCIC. NCIC is not an analytical database; rather it is an investigative tool that is used to obtain records on a case-by-case basis. As a result, Deputy Marshals cannot use NCIC to analyze the information in NSOR or the NCIC Wanted Persons File in its entirety to identify for investigation all suspected fugitive sex offenders.
The FBI CJIS Assistant Director said the USMS, like any other agency with access to NCIC, receives relevant information from NSOR and the NCIC Wanted Persons File whenever its personnel run a criminal record check. However, even though Deputy Marshals can view discrete portions of NSOR records associated with one person at a time through NCIC queries, they are not able to review the sex offender registry in its entirety because they do not have access to the complete NSOR database. When we discussed the potential value of NSOR data with USMS personnel, they said that the USMS uses a wide variety of intelligence sources in the course of an investigation and said access to NSOR would be “extraordinarily helpful.”
During our interviews, FBI CJIS officials indicated that they were willing to provide the USMS with the complete NSOR database and NCIC Wanted Persons File data for use in fugitive sex offender investigations, but that they were unaware of any requests from the USMS or any other component for access to this data.
We found that the registries that make up the national sex offender registration system, the FBI’s National Sex Offender Registry (NSOR) and OJP’s National Sex Offender Public Registry (NSOPR) portal, are inaccurate and incomplete and cannot be relied upon by law enforcement or the public for identifying registered sex offenders. The states have not entered approximately 22 percent of records on registered sex offenders into the FBI’s NSOR and have not identified sex offenders who have failed to maintain a current registration. Similarly, the state sex offender records available through OJP’s NSOPR portal are inconsistent and incomplete, and the NSOPR portal lacks reliable information about non-compliant sex offenders. Because of these weaknesses, federal, state, and local law enforcement officers who query the registries during an investigation may not obtain accurate information on suspects’ registration or fugitive status. In addition, the public cannot rely on the NSOPR portal as a complete and accurate registry to identify registered and non-compliant sex offenders in their communities. We believe that, when implemented, the SORNA guidelines will improve the quality of data in the sex offender registries, but will not correct all of the problems we noted.
To assess the accuracy and completeness of information in the FBI’s NSOR and in the state public registries accessible through OJP’s NSOPR portal, we compared records across both systems to determine if records found in one registry corresponded to records in the other. The information in the FBI’s NSOR and OJP’s NSOPR portal is provided by the states and territories. The inclusion, accuracy, and integrity of the data depend on the submissions from those states and territories. We also examined the records within each registry to determine if the information was sufficient to enable law enforcement and the public to identify registered and non-compliant sex offenders. Finally, we reviewed the guidelines that the Department issued in July 2008 to determine whether they contained measures that, when implemented, would resolve the weaknesses that we identified in NSOR and the NSOPR portal.
Data entered by the states into NSOR is incomplete and inaccurate and does not reliably identify non-compliant sex offenders.
We found that the FBI’s NSOR, which is populated by information from the states and territories, is missing records on roughly one of every five registered sex offenders. Moreover, the registry does not reliably identify sex offenders who have failed to maintain a current registration, are under investigation, or have had warrants issued for their arrest. We found several causes for these problems and determined that their combined effect makes NSOR an unreliable investigative tool. We also determined that although FBI audits found weaknesses similar to those found by our analysis, the FBI has not implemented the corrective actions recommended in its audits. In addition, the FBI has discontinued its audits of state registries because delays in issuing the Department’s SORNA guidelines in turn delayed state implementation of SORNA requirements.
NSOR is missing records and information contained in state registries.
Although the FBI’s NSOR is required to include records on each individual who must register as a sex offender, we estimate that the states have not entered approximately 22 percent of records on registered sex offenders into the FBI’s NSOR.56 We determined this by drawing a sample of 1,996 registered sex offenders from 52 public sex offender registries (accessed through OJP’s NSOPR portal) to see if they were listed in NSOR. We found that 445 (22 percent) of the 1,996 registered sex offenders in our sample were not listed in NSOR. See Appendix V for a state-by-state breakdown.
The percentage of sex offenders not included in NSOR varied widely by state. Only eight states listed 100 percent of the sex offenders from our sample in NSOR. For 19 states, less than 75 percent of the sex offenders listed in their public sex offender registries were also listed in NSOR. (See Figure 1.)
Figure 1: Percentage of Sex Offenders Listed Both in
State Public Registries and in NSOR
|Note: Includes 50 states, Puerto Rico, and the District of Columbia.|
In addition, information on registered sex offenders in state public sex offender registries did not accurately reflect the information in NSOR. For example, in one state four sex offenders were listed as non-compliant in the public sex offender registry. We found that only two of these four were listed in NSOR as non-compliant and none were listed in the NCIC Wanted Persons File, a separate file in NCIC, as being fugitives with active warrants issued by the state. For a second state, we found one offender was listed as a “sexual violent predator” in NSOR, but there was no similar warning in the public sex offender registry. In addition, many offenders were listed in the state’s public sex offender registry as a “sexually violent offender,” but none of them was so identified in NSOR. In a third state, the public sex offender registry indicated that there were 749 registered sex offenders, but we found that NSOR listed 1,043.
The findings of our review, conducted in spring 2008, mirrored the findings of audits the FBI conducted of state registries in FY 2006. In those audits, the FBI Criminal Justice Information Services (CJIS) Division’s Audit Unit checked to ensure the accuracy, completeness, and validity of sex offender data the states had entered in NSOR. The Lead Auditor said the audits found “a lot” of data in the state records that should have been entered into NSOR but was not. The audit also found a “huge problem” with the states accidentally deleting records of registered and non-compliant sex offenders from NSOR. As of September 2006, the FBI’s completed audits identified eight systemic weaknesses (see Table 4).
However, the FBI suspended further audits until after the SMART Office issued the guidelines to the jurisdictions on implementing SORNA requirements (which it did on July 1, 2008) to allow the FBI to redevelop audit criteria based on the SORNA guidelines. Consequently, efforts to address the eight weaknesses identified by the CJIS audits of NSOR data and data entry procedures were placed on hold until further audits can be conducted based on the SORNA guidelines.
Table 4: Weaknesses Identified in State Registries and
the Number of Audits in Which Each Weakness Was Identified
|Weakness||Identified by Audits|
|Incomplete data in mandatory fields (e.g., incomplete address)||27 of 27|
|Non-compliance with the validation policy (i.e., the agency that entered the record did not ensure it was complete, accurate, and still active)||26 of 27|
|Inaccurate record information||25 of 27|
|Failure to properly update records (e.g., accidentally deleting the entire record while trying to clear a warrant)||23 of 27|
|Failure to include a notation in the miscellaneous field that the offender failed to register or was non-compliant||19 of 27|
|Accuracy of data entry not verified by second party*||18 of 27|
|Untimely entry of records||16 of 27|
|Not complying with participation requirements that define offenders who must be included in NSOR||13 of 27|
CJIS also canvasses the states semiannually to determine the number of records of offenders in NSOR. The last CJIS canvass, conducted in April 2008, examined all states and found that 16 percent of the records in the states’ law enforcement registries were missing from NSOR, which is similar to our analysis’s finding that 22 percent of 1,996 sex offenders registered in the states’ public registries were not in NSOR.
FBI CJIS, the USMS, and the Department officials told us there were several reasons why NSOR does not contain complete or up-to-date information on all of a state’s registered and non-compliant sex offenders:
- States do not always obtain warrants for non-compliant sex offenders, and when they do obtain such warrants they do not enter all of them into NCIC – Participation in NCIC is voluntary, and states are not required to enter all of their warrants in the NCIC Wanted Persons File. Further, FBI CJIS officials told us some states do not seek warrants on non-compliant sex offenders because these violations do not meet the states’ criteria for seeking a warrant. The USMS Task Force Operations Chief noted that some states do not enter warrants into the NCIC Wanted Persons File because they have decided that they will not extradite particular fugitives because of the expense. He also said that some communities do not want fugitive sex offenders returned to them, even for prosecution. The Chief stated that the USMS cannot force states to enter their fugitive sex offender warrants into the NCIC Wanted Persons File or to note in the NSOR miscellaneous field that the person is a fugitive. Officials we interviewed in EOUSA and the BJA attributed the problem to shortages of resources for data entry at the state level.
- Programming issues cause information to be lost when state systems update NSOR records – Some states have not programmed their systems to allow for the updating of existing NSOR records, and the FBI does not maintain records on each state’s capabilities. As a result, according to an NSOR auditor, when one of these states tries to update a sex offender record, the record is deleted from NSOR even though the record is saved in another location on the state registry. The NSOR auditor told us that this programming error has resulted in the deletion of an unknown number of sex offender records from NSOR. State government budget constraints have prevented states from re-programming their systems to correct this problem.
- Some states provide only minimum data to NSOR – Some states submit only the minimum mandatory data even when they have additional data, according to the NSOR auditor. Many state registries are programmed to extract and send only the data needed to populate NSOR’s mandatory fields, while other states provide additional information.
- Some states must enter all sex offender registration data separately into state registries and NSOR – According to the NSOR auditor, many states’ centralized sex offender data systems were not set up to provide an interface with NCIC or NSOR because it was not the systems’ original purpose. When a state’s registry is not compatible with NCIC or NSOR, the state may be required to enter data separately into its own system and into NCIC or NSOR, which creates additional work for state registry authorities. A Department attorney said some states have up-to-date information on their registered sex offenders in their own registries but do not input that information into their public registries and NSOR in a timely manner. He added that although NSOR is supposed to be a complete record, in some cases it is less complete than state registries. Further, in some states central repositories gather local agency information and enter it into NSOR, while in other states local agencies enter data directly into NSOR. The attorney stated that state registry information should feed directly into NSOR rather than being a two-step process that could lead to information being lost along the way.
- For about 10 years, NSOR did not accept sex offender records that did not have an FBI number – From the establishment of NSOR in 1997 until October 2007, a technical problem caused the database to not accept sex offender entries that lacked an FBI number. Although this problem has been resolved, sex offender registration records without an FBI number that were submitted before October 2007 are missing from NSOR.57
For the reasons stated above, an FBI NSOR Management Analyst agreed with our finding that NSOR may be missing more than 22 percent of registered offenders who are registered in state sex offender registries.
NSOR does not contain reliable information on which sex offenders are non‑compliant, are under investigation, or have outstanding warrants.
Beyond the discrepancies between records on sex offenders maintained in state and FBI systems, we also found discrepancies within the FBI systems. States are permitted to record information about non-compliant and fugitive sex offenders in two separate locations in the FBI’s data systems: the Wanted Persons File of NCIC and the miscellaneous field in NSOR that can contain a variety of other types of details. The information in the two locations does not always correspond. We examined NCIC information on non-compliant sex offenders and found three areas of discrepancy.
First, sex offenders listed as non-compliant on state public sex offender registries were not always identified as non-compliant in NCIC. We found that non-compliant sex offenders identified in state public sex offender registries were generally not identified as non-compliant or as fugitives in the NSOR miscellaneous field or the NCIC Wanted Persons File. Among the 1,996 sex offender registrants we examined, 57 registrants were identified as non-compliant in state public sex offender registries. Of the 57 non‑compliant sex offenders, 30 (53 percent) were listed in NSOR but were not identified as being out of compliance with their registration requirements. Another 11 of the 57 (19 percent) were not listed in NSOR at all. Only 16 of the 57 (28 percent) were identified as non-compliant sex offenders in NCIC. These included 3 sex offenders identified as fugitives in the NCIC Wanted Persons File and 13 sex offenders identified as non-compliant or as fugitives in the NSOR miscellaneous field.
Second, sex offenders listed as fugitives in the NSOR miscellaneous field were not always included in the NCIC Wanted Persons File. Our analysis found 12,548 fugitive sex offenders identified in NCIC. Of that total, 7,389 were identified in the miscellaneous field of NSOR, 5,432 were listed in the NCIC Wanted Persons File, and only 273 were identified in both locations.
Third, most fugitive sex offenders for whom the USMS had opened an investigation were not identified in the NCIC Wanted Persons File or the NSOR miscellaneous field. According to USMS data, in FY 2007 USMS districts opened 2,959 investigations of fugitive sex offenders based on state and local warrants. As of March 21, 2008, 232 of those investigations remained open.58 We found that only 56 (24 percent) of the 232 fugitive sex offenders for whom the USMS had open investigations were identified in the NCIC Wanted Person File and that only 19 (8 percent) of the 232 were identified as non-compliant in the NSOR miscellaneous field.
In interviews with FBI, USMS, and NCMEC officials, we determined that non-compliant or fugitive status was not always reflected in the NSOR miscellaneous field or the NCIC Wanted Person File for four reasons. As discussed previously, states are not required to enter all of their warrants into NCIC’s Wanted Persons File and do not always do so because contributions to NCIC are voluntary. We also were told states may not want to reveal that there are a large number of fugitive sex offenders in their jurisdictions or may lack enough personnel to make manual updates to NSOR and NCIC. An FBI CJIS Unit Chief stated that state and local agencies not entering felony warrants in general into NCIC’s Wanted Persons File has been an ongoing issue. (See text box.) Further, the NSOR and the NCIC Wanted Persons File may not reflect all fugitive sex offenders because states sometimes do not immediately issue warrants for sex offenders who have failed to meet registration requirements. According to a state registry official, the delay occurs because law enforcement cannot question an individual once a warrant is issued – it can only arrest the individual.
If state warrant information is not in the NCIC Wanted Persons File, investigators must search the narrative information in the NSOR miscellaneous field, creating a risk that a sex offender’s fugitive status will not be discovered by law enforcement agencies when the offender is encountered. Although an NSOR Management Analyst told us the criminal justice community has over 40 years of experience with the NCIC system and can expeditiously review the data in the NSOR miscellaneous field, she also stated that our findings could be considered by the FBI NCIC Advisory Policy Board in recommending fields be added to NSOR to systematically capture information now only entered in the miscellaneous field. (See text box below.)
We found that Department and FBI CJIS officials are aware of the shortcomings of NSOR and the NCIC Wanted Persons File. The Assistant Director for FBI CJIS said he doubts NSOR includes all sex offenders in the United States because the states have discretion about what data within each record and which sex offender warrants they provide. In addition, the Acting Chief for the FBI Violent Crimes Unit told us, “All we know is what is reported to us by the states,” and added that it would be helpful to know if NSOR was accurate. One USMS official told us that Deputy Marshals mine data on sex offenders from several sources, rather than rely on NSOR alone. However, Department officials also stated that they believe that NSOR’s weaknesses do not impede the investigations and prosecution of sex offenders who do not comply with registration requirements. For example, one USMS official told us that the lack of warrant information in the NCIC Wanted Persons File did not impede their fugitive investigations because they receive the information they need directly from the states.
State sex offender records available through OJP’s NSOPR portal are inconsistent and incomplete, and NSOPR lacks reliable information about non-compliant sex offenders.
As with the FBI’s NSOR database, we found that the sex offender records in OJP’s NSOPR portal are inconsistent and incomplete. A Senior BJA Analyst involved in the creation and maintenance of the NSOPR portal stated that while he wants more people to use the NSOPR portal, he does not want people relying on it and assuming that it is a complete and accurate list of all sex offenders. The inconsistencies in the NSOPR portal result from the fact that the NSOPR portal is only a portal to state and U.S. territory public sex offender registries.59 Consequently, data accessed through the NSOPR portal has all the data variations and flaws evident in those systems. During our analysis of the NSOPR portal, we found the content of states’ sex offender registries varies widely. Many of the state registries do not yet contain fields that are required under SORNA. Table 5 identifies the percentage of registries in our review of 52 registries that did or did not include specific information fields.
Table 5: Offender Information Contained in 52 Public Registries
|Electronic notification upon request of changes in offenders’ status||10%||90%|
|Address of school affiliation||19%||81%|
|Address of employment||21%||79%|
|Threat information (offense tier or risk assessment)||23%||77%|
|Victim information (age or relation to offender)||25%||75%|
|Mapping of offender’s address||31%||69%|
|Date of birth||79%||21%|
Source: State registries accessed through NSOPR.
In addition, we found that:
- All but one state registry (Kansas) provided a physical description of the offender, such as height, weight, eye color, and hair color.
- Eleven state registries had the offender’s age only, year of birth only, or no age information at all.
- Eight state registries provided a home town or zip code, but no home address.
- Some of the records from six state registries were missing pictures of the sex offender or the pictures provided were of such poor quality that we do not believe they could be used to reliably identify offenders.
- One state registry (Colorado) did not have any conviction data.
As with the FBI’s NSOR database, we found that the NSOPR portal does not contain reliable information to identify non-compliant or fugitive sex offenders. States’ public registries often did not inform users that a sex offender was a fugitive. According to USMS data, in FY 2007, USMS districts entered 2,959 warrants for individual fugitive sex offenders into its own tracking system. As of March 21, 2008, 232 (8 percent) of the warrants for individual fugitive sex offenders remained open.60 We could not find NSOPR portal entries for 77 of these fugitives, and the NSOPR portal entries for another 15 indicated the individuals were incarcerated. Of the remaining 140 fugitives, 87 (62 percent) could be identified as such in the NSOPR portal. The remaining 53 (38 percent) fugitive sex offenders who were the subjects of active USMS investigations were not identified as fugitives in the NSOPR portal.
In response to our analysis, USMS officials provided reasons why fugitive status information may be missing from the NSOPR portal. The USMS Sex Offender Investigations Branch Chief said the state or local agency that updates the state registries is often an administrative office, not the law enforcement agency that brings cases to the USMS. Consequently, the request to the USMS for assistance by the law enforcement agency and the entry of fugitive status information into the state public sex offender registry may not be coordinated. The USMS Task Force Operations Chief stated that the state public registries’ information regarding a given individual’s fugitive status does not concern the USMS because the USMS relies on information provided directly from local and state investigators. He added that he thought that including this information on the public registries would help the public more than the USMS.
We found that neither the BJA nor the SMART Office conducts any analysis to identify or ensure the accuracy or consistency of data accessed through the NSOPR portal. A Senior BJA Analyst told us that beyond the BJA’s development of the NSOPR portal website, validation of the NSOPR portal technology, and establishing connectivity to state registries, there has been no Department oversight or other requirements related to the NSOPR portal. The Analyst stated that the accuracy and completeness of the data is the responsibility of each state and that “if the states are not updating the data, that is on them.” Further, an AUSA detailed to the SMART Office stated that the SMART Office’s role in maintaining the NSOPR portal is managing grants, training, providing technical assistance, and overall implementation of SORNA. The AUSA added that ensuring the accuracy and completeness of the data in the state public registries is not a part of the SMART Office’s role.
Implementing the SORNA guidelines should improve the quality of data in the sex offender registries, but will not correct all problems.
As required by SORNA, the Department issued guidelines to the jurisdictions to strengthen the national sex offender registration system. The guidelines were meant to interpret and clarify the SORNA requirements that the jurisdictions are to implement. We reviewed the guidelines to determine whether, if implemented, they would resolve the weaknesses that we identified in NSOR and the NSOPR portal.61 We concluded that the guidelines would resolve some of the weaknesses we identified and would improve the completeness and accuracy of sex offender registration data in the registries. However, we believe the guidelines will not correct all of the problems or ensure that members of the public have the information they need to assess the threat posed by sex offenders in their communities.
The guidelines list eight “core types of information whose public disclosure through the sex offender websites has the greatest value in promoting public safety” and that jurisdictions must provide on their public sex offender websites in order to avoid reduction in Byrne grant funding. The eight core types of information are:
- The name of the sex offender, including any aliases;
- The address of each residence at which the sex offender resides or will reside and, if the sex offender does not have any (present or expected) residence address, other information about where the sex offender has his or her home or habitually lives;
- The address of any place where the sex offender is an employee or will be an employee and, if the sex offender is employed but does not have a definite employment address, other information about where the sex offender works;
- The address of any place where the sex offender is a student or will be a student;
- The license plate number and a description of any vehicle owned or operated by the sex offender;
- A physical description of the sex offender;
- The sex offense for which the sex offender is registered and any other sex offense for which the sex offender has been convicted; and
- A current photograph of the sex offender.
Several officials we interviewed, including the Director and an AUSA with the SMART Office, a Director at NCMEC, and an EOUSA attorney, explained that they expect the guidelines to standardize and increase the consistency of some of the information in the jurisdiction registries, and by extension, improve NSOR and the NSOPR portal. An FBI Intelligence Analyst and liaison to NCMEC also told us that she believes the guidelines will force uniformity and consistency in the data in the jurisdiction registries. In addition, she said that the guidelines clarify who is responsible for updating NSOR and the NSOPR portal, which will allow better tracking of sex offenders from jurisdiction to jurisdiction. A Senior Counsel to the Deputy Attorney General said technical assistance provided by the SMART Office in response to the guidelines will help improve the jurisdiction registries.
The SORNA guidelines address some of the weaknesses in the national sex offender registries.
The following sections provide our assessment of specific areas of the SORNA guidelines that may help address weaknesses or otherwise improve the national sex offender registries if they are implemented by the jurisdictions.
More sex offenders required to register. Some sex offenders who were previously not required to register must do so under SORNA. The guidelines state that “SORNA applies to all sex offenders, including those convicted of their registration offenses . . . prior to particular jurisdictions’ incorporation of the SORNA requirements into their programs.” The guidelines also direct jurisdictions to submit registration information before incarcerated sex offenders are released. Although the guidelines recognize that registering pre-SORNA sex offenders may be more difficult if those offenders are no longer incarcerated or under supervision, the guidelines call for the jurisdictions to implement registration within 3 months for Tier III offenders, 6 months for Tier II offenders, and 1 year for Tier I offenders.
Improved reporting of updated sex offender information. The guidelines require jurisdictions to update their registries, NSOR, and the NCIC Wanted Persons File (once a warrant has been issued), and to notify the USMS when the jurisdictions have been informed that a sex offender should be registering but has not appeared in person as required by SORNA.
More complete and up-to-date information. SORNA’s stringent reporting requirements for sex offenders, which are described in the guidelines, should improve the accuracy of the information in the national registries. Specifically, the guidelines describe the in-person appearance requirements and state that:
In all cases in which a sex offender makes an in-person appearance in a jurisdiction and registers or updates a registration . . . the jurisdiction must immediately transmit by electronic forwarding the registration information for the sex offender (including any updated information concerning name, residence, employment, or school attendance provided in the appearance) to all other relevant jurisdictions.
In addition, the guidelines further ensure accuracy by advising jurisdictions on how to satisfy SORNA’s requirement that public registries include “instructions on how to seek correction of information that an individual contends is erroneous.” The guidelines suggest that each jurisdiction identify the jurisdiction’s representative for correcting erroneous information on the registry website and “advis[e] persons that they can contact this agency if they believe that information on the site is erroneous.”
Inclusion of federally convicted offenders in the registries. There is no separate registry for federal sex offenders. Rather, federal sex offenders are integrated into the sex offender registration programs of the jurisdictions in which they are required to register. However, in our analysis of the 12 sex offenders in our sample who were convicted federally, only 7 were included in NSOR (matched by name, state, or social security number), and 8 were included in the NSOPR portal (matched by name and state). To ensure that all federal offenders are included in the registries, the guidelines state that before releasing sex offenders, the Federal Bureau of Prisons must inform them of the SORNA registration requirements and notify law enforcement and the registration authorities in the jurisdictions into which the offenders are being released.
Department attorneys we interviewed said they expect there to be more federally convicted sex offenders as a result of the increase in federal investigations and prosecutions of SORNA violations they expect to occur over time. Because of this expected increase, the guidelines’ emphasis on a process for registering these offenders is particularly important. We discuss below in Section III the trends in federal investigations and prosecutions that have occurred since the passage of SORNA.
Identification of fugitive status. In our analysis of fugitive sex offenders who were the subjects of active USMS investigations, we found that many were not listed in the NCIC Wanted Person File or were not identified as fugitives in the NSOPR portal. The guidelines establish that the sex offender registration record in NCIC’s Wanted Persons File will include the information that the sex offender is a fugitive. The guidelines state that information in the jurisdiction registry must be revised to reflect that a sex offender is non-compliant. In addition, the guidelines specifically state that “the jurisdiction must update the FBI’s NSOR to reflect the sex offender’s status as an absconder or non-compliant and enter the sex offender into the NCIC Wanted Person File (assuming issuance of a warrant meeting the requirement for entry into that file).” The guidelines do not, however, address fugitive status information in the NSOPR portal, and implementation of the guidelines will not improve the public’s access to information about non-compliant sex offenders.
Now that the Department has issued the SORNA guidelines, the FBI’s CJIS Division said that it plans to take actions to improve the identification of fugitive sex offenders in NSOR. The NCIC Advisory Policy Board has approved changes to address weaknesses in NSOR data and data entry procedures.62 Among the changes is adding a sex offender status field where jurisdictions can indicate that an offender is a fugitive. The CJIS Unit Chief told us that these changes would be implemented after the SORNA guidelines were issued. Although the guidelines were issued in July 2008, the changes had not been implemented as of November 2008.
Better photographs of registered sex offenders in public registries. An important feature of the NSOPR portal is that it displays photographs of registered sex offenders, but our review found that the photographs were often missing, out of date, or unclear. The guidelines require jurisdictions to provide a current photograph of the sex offender on their public sex offender websites. The Director of the SMART Office told us that she would like to enhance the NSOPR portal so that the search results include a thumbnail photograph along with the name of the sex offender. However, this change had not been implemented during our review.
The SORNA guidelines do not address some important weaknesses.
In our review of the national registries we identified several weaknesses that full implementation of the guidelines would not appear to resolve.
Information missing from the jurisdictions’ registries. During our review of NSOR and the NSOPR portal, we found that demographic information was not always included in the state registries. For example, some public registry websites show either the offender’s year of birth or age, but not the actual date of birth, which is more precise and does not have to be updated. We also found that only 25 percent of public registry websites provide victim characteristics, such as the age, sex, and relationship to the sex offender. For sex offender registries to be helpful tools, it is important that they provide the information the public needs to assess the threat posed to them by different sex offenders. Victim information could be useful for this purpose because sex offenders often have victim preferences.
Identification of federal convictions. We found instances in which NSOR and NSOPR records contained no information about registered sex offenders’ federal convictions. Our review of the guidelines found they require registries to include information on convictions, in general, but do not specifically mention federal convictions. The Director of the SMART Office noted that the guidelines require jurisdictions to list the specific statute under which a sex offender has been convicted, which would include any violations of federal statutes. We believe that unless the requirement is explicit, states may continue to omit this information.
Multiple records for the same offender. In our analysis of the national registries, we found duplicate entries in both NSOR and the NSOPR portal. In the FBI’s NSOR, we found 45,541 entries we considered duplicate entries, representing 9 percent of total NSOR entries. We further sampled 186 entries from 10 states and found that 87 (47 percent) were entered in multiple state files and confirmed to be duplicate entries. In some cases, the multiple entries may be appropriate because they result from the requirement that sex offenders register where they live, work, and attend school or because some states require offenders to maintain registrations regardless of where they live, work or attend school. In other cases, the multiple entries appear to be a result of failures by states to coordinate or from failure by a state to ensure accurate data entry. For example, we found:
- A sex offender who was registered in Florida and listed as an absconder in California.
- A sex offender who was listed as an absconder in Georgia and listed in the Mississippi registry with a recent verification.
- A sex offender who appeared on the Florida registry three times with name variations. We confirmed it was the same individual by matching his date of birth and picture.
- A sex offender listed twice in the Colorado registry – once as incarcerated and once as “Failed to Register.”
The guidelines do not address unnecessary or erroneous duplicate records, and fully implementing the guidelines will not reduce the number of duplicate records in the national registries. In fact, because the guidelines call for routine and comprehensive sharing of sex offender information between jurisdictions, it is likely that implementation of the guidelines will result in more instances in which a sex offender is registered in more than one jurisdiction.
Extraneous records not purged. During our review of the NSOPR portal, we found sex offender registration records that contained only the name of the sex offender and indicated that the record had been removed because the sex offender was no longer required to register. A Director at NCMEC explained that states and territories maintain their registries in different ways. For example, 18 states purge their registries of sex offenders who have been deported, incarcerated, or who have moved out of state. The remaining 38 registries do not purge records on offenders who have left the state or are incarcerated. The guidelines do not include a protocol for jurisdictions to ensure that the records of sex offenders who are no longer required to register are removed from either the jurisdiction registry or the public registry. When asked about removing records of sex offenders no longer required to register, the Director of the SMART Office told us jurisdictions have discretion about whether to remove or retain records of sex offenders who are no longer required to register. An AUSA detailed to the SMART Office noted that some state laws require information on an offender who was required to register to remain on the state registry forever.
The inclusion of records that are not current can reduce the utility of the registries for law enforcement. The FBI Assistant Director for the Criminal Investigations Division provided an example of using a sex offender public registry to develop leads in a child abduction case in Louisiana. That state has a broad range of offenses that require registration. The list of registered sex offenders near the site of the abduction contained 8,000 names – so many that it required a great deal of prioritization before the information could be useful to law enforcement.
- The Department has increased federal investigations, arrests, and prosecutions of sex offenders for failure to register or update a registration, which are federal felonies under SORNA. The Department has also increased assistance to state and local law enforcement agencies to arrest sex offenders for failure to register or update a registration.
The Department’s involvement in the cases of non-compliant sex offenders typically begins when a state or local agency brings one of its fugitive warrants to a USMS task force for assistance. In most cases, the USMS agrees to assist the state or local agency, but does not initiate a separate federal investigation.63 If the violation appears to meet the standards that the USAO for that district has set for federal prosecutions, the USMS may present the case to the USAO for consideration. The USMS stated that only a small percentage of fugitive sex offenders qualify under 18 U.S.C. § 2250 and that most “failure to register” cases are handled by state authorities. If the USAO accepts the case, it seeks a federal warrant and the offender is then considered a federal fugitive.
In the following sections, we describe trends in federal investigations, arrests, and prosecutions of sex offenders for failure to maintain a current registration.
The Department has increased federal investigations, arrests, and prosecutions of sex offenders for failure to register or update a registration.
Over the last 4 fiscal years, the USMS has increased the number of investigations it conducted for failure to comply with federal statutes requiring sex offenders to register or update a registration. As shown in Figure 2, between FY 2004 and FY 2007 the USMS increased the number of fugitive sex offender investigations it conducted from 390 to 2,962. These figures include both investigations of individuals for violations of federal law and investigations of individuals wanted by state and local law enforcement authorities for failure to maintain a current registration. Within the overall number of investigations, the proportion based on federal warrants has increased. Specifically, between FY 2004 and FY 2007 the USMS increased the number of federal sex offender fugitive investigations from 9 (2 percent of the total number of investigations in that year) to 341 (12 percent of the total).
Figure 2: USMS Fugitive Sex Offender Investigations
The total number of arrests that resulted from those investigations increased from 149 in FY 2004 to 2,779 in FY 2007. As with investigations, the proportion of arrests based on federal warrants increased. Figure 3 shows that all 149 arrests in FY 2004 were based on state warrants. By FY 2007, 2,579 of the arrests were based on state warrants, and 200 arrests (7 percent of the total) were based on federal warrants.
Figure 3: USMS Fugitive Sex Offender Arrests
The number of investigations for violations of federal registration statutes increased because SORNA made failure to register or update a registration a federal felony and specifically identified the USMS as the entity to pursue violators.64 As shown in Figure 4 the USMS conducted only 54 such investigations from FY 2004 through FY 2006. In FY 2007, after the enactment of SORNA, the number of investigations of the failure of sex offenders to comply with federal statutes requiring them to register or update a registration jumped to 341.65 Although the Wetterling Act contained a provision that established federal jurisdiction for sex offenders who crossed state lines and did not maintain their registration as required, in practice, this provision was rarely used by federal investigators or prosecutors. This was partly because the federal violation was a misdemeanor and partly because the federal charge applied only if the conviction for which the registration requirement was imposed occurred after the Wetterling Act was enacted. With SORNA, Congress made it a federal felony, punishable by up to 10 years’ imprisonment, for sex offenders to cross a state line after knowingly failing either to register or to keep their registration current.
Figure 4: USMS Federal Investigations for Failure to Register
or Update Registrations
Similarly, the increase in USMS arrests of fugitive sex offenders for violations of federal statutes also occurred after the enactment of SORNA. From FY 2004 through FY 2006, there were eight USMS arrests of fugitive sex offenders on federal warrants. In FY 2007, after SORNA, the USMS arrested 200 fugitive sex offenders on federal warrants (see Figure 5).
Figure 5: USMS Arrests for Federal Failure to Register
or Update a Registration
The USMS Sex Offender Investigations Branch Chief noted that a federal charge for failure to register or update a registration can be used only if there is interstate travel or if the original charge was federal. If the USMS cannot prove that the sex offender intentionally and knowingly violated his registration requirements and crossed state lines, or if the case fails to meet any other national or district-specific federal prosecution standards set by the U.S. Attorney in the district, Deputy Marshals will not present the case to the USAO. The Chief of the USMS Sex Offender Investigations Branch also told us that not all SORNA investigations produce a case that would be presented to the USAO. For example, the USMS might investigate someone who is in violation of SORNA registration requirements in one state but find he is complying in another. Therefore, while that offender may be in violation of state law, the offender is not in violation of SORNA and cannot be prosecuted federally. The Chief of the USMS Sex Offender Investigations Branch also said that it is rare that cases are referred to the USMS by entities other than a state or local agency (for example, the FBI or ICE), but that those cases almost always meet the standards for federal prosecution.
Department attorneys have also begun federally prosecuting sex offenders who are in violation of SORNA registration requirements. In response to our request for data on prosecution or declinations of alleged 18 U.S.C. § 2250 violations (failure to register or update a registration), EOUSA reported to us that from the enactment of SORNA through March 2008, 162 such cases were accepted for prosecution and 53 cases were declined for prosecution.66 According to data provided by EOUSA, of the 93 USAOs, 56 (60 percent) had accepted at least one such case for prosecution through March 2008. However, 10 of the 93 USAOs were responsible for almost half (48 percent) of all the fugitive sex offender cases submitted through March 2008. There were no federal prosecutions for failure to register or update a registration from FY 2004 until the enactment of SORNA in July 2006.
The Chief of the Criminal Division’s Child Exploitation and Obscenity Section stated that in almost every case, state and federal attorneys have to decide whether the case should be prosecuted federally or by the state based on the respective penalties of the state and federal charges that can be brought against the defendant. The USMS guidance on investigating SORNA violations states:67
Typically, USAOs will consider among other things, the severity of the target’s offense, the target’s risk to the community, and the quality and quantity of the proof available. They may also consider the willingness and ability of a state to prosecute a related violation, as well as the relative severity of the available state penalty.
We asked the EOUSA’s Project Safe Childhood Coordinator whether SORNA prosecutions are likely to increase because of the Department initiating more federal investigations of fugitive sex offenders, and he responded, “Most definitely.”
However, USAOs may decline to proceed with federal prosecutions of these cases. The Project Safe Childhood Coordinator cited several reasons, including that USAOs have flexibility in establishing guidelines for what cases they will and will not accept. As shown in Table 6, since the enactment of SORNA, USAOs declined to prosecute 53 of the SORNA cases presented to them from the enactment of the law through March 2008. U.S. Attorneys declined 15 of these cases immediately and 38 cases after initially accepting them.68
Table 6: Declinations of Fugitive Sex Offender Cases by USAOs
|Reason EOUSA gave for declining prosecution||Declinations|
|Suspect prosecuted by other authorities||15|
|Weak or insufficient admissible evidence||11|
|Lack of evidence or criminal intent||6|
|No federal offense evident||3|
|Minimal federal interest or no deterrent value||3|
|Office policy (failed to meet guidelines)||3|
|Suspect prosecuted on other charges||2|
|Suspect serving sentence on other charge||1|
|Civil, administrative, or other discipline alternative||1|
|Declined per instruction from Department||1|
|Jurisdiction or venue problems||1|
The USMS has increased assistance to state and local law enforcement agencies to arrest sex offenders for failure to register or update a registration.
The USMS was involved in assisting state and local agencies with their fugitive sex offender investigations before the enactment of SORNA and has continued to assist with these investigations. In FY 2004, the USMS assisted with 381 investigations for failure to register or update a registration based on state or local warrants, and in FY 2007, it assisted with 2,621, as shown in Figure 6. Each year between FY 2004 and FY 2007, the USMS increased the number of fugitive sex offender investigations based on state and local warrants. Between FY 2004 and FY 2005, the USMS increased the number of investigations by 436; between FY 2005 and FY 2006, by 879; and between FY 2006 and FY 2007, by 925.
Figure 6: USMS Investigations of Individuals for Failure to Register
or Update a Registration Based on State and Local Warrants
We found that USMS arrests of fugitive sex offenders for failure to register or update registration on state and local warrants also increased significantly between FY 2004 and FY 2007, from 149 arrests to 2,579 (see Figure 7). As with investigations, the number of arrests increased each year. Between FY 2004 and FY 2005, the USMS increased the number of arrests by 352; between FY 2005 and FY 2006, by 565; and between FY 2006 and FY 2007, by 1,513.
Figure 7: USMS Arrests of Individuals for Failure to Register or
Update a Registration on State Warrants
The USMS managers we interviewed stated that they were not surprised by our analysis showing increased assistance to state and local law enforcement. They stated that the numbers were consistent with the USMS’s increased emphasis on investigating and arresting fugitive sex offenders. The USMS Chief of Task Force Operations said that USMS leadership, from the USMS Director down, has placed more emphasis on investigations of fugitive sex offenders and that he would expect these numbers to go up even more if the USMS receives positions dedicated to fugitive sex offender investigations.
USMS officials stated that they believe the task forces they operate and the fugitive operations they conduct in partnership with local, state, and other federal agencies have also contributed to the increase in fugitive sex offender investigations and arrests. The USMS Sex Offender Investigations Branch Chief noted that there are 94 different USMS task forces assisting state and local agencies with investigations of fugitive sex offenders. The USMS Chief of Task Force Operations also attributed the increases in fugitive sex offender investigations and arrests to the maturity of the Regional Fugitive Task Forces.69 He said that calendar year 2006 was the first full year that the six Regional Fugitive Task Forces were in operation and that he would expect to see increases in all types of violent fugitive arrests in coming years, not just fugitive sex offender investigations and arrests.
The USMS Task Force Operations Chief noted that the USMS currently does not have any directives specific to task forces for investigating fugitive sex offenders. Rather, he said that the USMS views fugitive sex offenders as a subset of violent fugitives that is included in the USMS’s mandate for assisting the states. He stated that the USMS’s assistance provided under SORNA is simply a continuation of its ongoing activities that are funded through the appropriations the USMS receives for responding to violent crime. The USMS Sex Offender Investigations Branch Chief stated that the USMS has arrested fugitive sex offenders brought to its attention by the state and local agencies and that the 2006 Federal and Local Cops Organized Nationally (FALCON) operation focused on sex offenders.70 However, the USMS Task Force Operations Chief said, in terms of the size of the population of sex offenders who are out of compliance with their registration requirements, “We’re treading water right now. The number of sex offenders is growing all the time.”
- The Edward Byrne Memorial Justice Assistance Grant Program helps local communities improve the capacity of local justice systems and provides for national support efforts, including training and technical assistance programs, to address local needs.
- We found that, as of July 31, 2008, 16 state public registries included a mapping feature, some of which provided a geographic radius search. However, we cannot confirm whether the software used was provided by the SMART Office or was obtained independently by the states.
- 42 U.S.C. § 16920.
- 42 U.S.C. § 16912(b). The final guidelines can be found at www.ojp.usdoj.gov/smart/guidelines_final.htm.
- The guidelines also state that “at the latest, submissions establishing compliance with the SORNA requirements should be made to the SMART Office at least three months before the deadline date of July 27, 2009.”
- Section 115 of SORNA establishes three tiers of registration requirements for sex offenders according to the severity of their offenses. Tier definitions are codified at 42 U.S.C. § 16911. See the Background section of this report for further discussion.
- 42 U.S.C. § 16925(b).
- The eights states were Arizona, Delaware, Massachusetts, Montana, Nebraska, New York, Texas, and Washington. We note that states are not required to be in compliance until July 27, 2009.
- 42 U.S.C. § 16924.
- 42 U.S.C. § 16925.
- In 2008 the Department awarded roughly $107.7 million to states and territories through the Byrne Memorial Justice Assistance Grant Program. This is an average of about $1.9 million per state, which means that on average states could lose about $192,000 for not complying with SORNA for any fiscal year after July 27, 2009. Awards to the states ranged from $11.5 million to $281,000.
- 42 U.S.C. § 16928.
- 42 U.S.C. § 16921(b)(1).
- Created in 1923, INTERPOL is the world’s largest international police organization, with 186 member countries. According to INTERPOL, it facilitates cross-border police cooperation and supports efforts to prevent or combat international crime.
- On September 12, 2008, the SMART Office began sponsoring an International Working Group to track sex offenders leaving and entering the United States or traveling internationally.
- 42 U.S.C. § 16926.
- The Office of Community Oriented Policing Services (COPS) awards grants to tribal, state, and local law enforcement agencies to hire and train community policing professionals, acquire and deploy crime-fighting technologies, and develop and test policing strategies. It also provides training and technical assistance to advance community policing.
- SMART Office Fiscal Year 2008 Support for Adam Walsh Act Implementation Grant Program Competitive Grant Announcement; Grant Number: SMART-2008-1852.
- 42 U.S.C. § 16921.
- 42 U.S.C. § 16921.
- 42 U.S.C. § 16927.
- The jurisdiction and legal authority of 350 federally recognized Indian tribes was transferred from the federal government to state governments in six states (California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska (upon statehood)) in 1953 (18 U.S.C. §§ 1162, 1360, and 1321-1326). According to the Director of the SMART Office, these tribes’ SORNA decisions are made by the states in which tribes reside.
- The remaining 14 eligible Indian tribes elected to not implement SORNA requirements, and as a result the state in which each is located will have jurisdiction over the tribe’s sex offender registration and notification system.
- The Executive Director for the National Congress of American Indians said the SMART Office’s SORNA guidelines provide no indication of the process that will be used to assess tribal compliance. The SMART Office told us, however, that it will assess tribal compliance in the same manner as states and territories.
- 42 U.S.C. § 16991.
- Project Safe Childhood was established in February 2006 to combat the proliferation of technology-facilitated sexual exploitation crimes against children, such as Internet-based crimes.
- 42 U.S.C. § 16917.
- 18 U.S.C. § 2250.
- 42 U.S.C. § 16942.
- 11 Section 145 also requires a report on the activities carried out under this section to Congress by July 1, 2007 (42 U.S.C. § 16944). The Department issued the report to Congress on October 23, 2008.
- 42 U.S.C. § 16941.
- A Senior Counsel for the Deputy Attorney General told us that the Department’s FY 2008 budget did not allocate resources to the USMS to implement Section 142 and that the Department was focused on addressing insufficient USMS resources.
- Operation FALCON is a USMS-led initiative that combines the resources of federal, state, county, and city law enforcement agencies to locate and arrest fugitives wanted for violent crimes.
- 42 U.S.C. § 16943.
- Operation Predator is a national initiative operated by the Department of Homeland Security’s ICE that investigates and presents for prosecution pedophiles, Internet predators, human traffickers, international sex tourists, and other predatory criminals.
- According to its website, Crime Stoppers USA is a nationwide network of local programs that work together to help prevent and solve crime in communities and schools.
- 42 U.S.C. § 16919(b).
- 42 U.S.C. §§ 16961, 671(a)(20), and 16962.
- Federal law defines “national crime information databases” as “the National Crime Information Center (NCIC) and its incorporated criminal history databases, including the Interstate Identification Index.” 28 U.S.C. § 534.
- According to Section 119 of SORNA, “The Attorney General shall maintain a national database at the Federal Bureau of Investigation for each sex offender and any other person required to register in a jurisdiction&r57squo;s sex offender registry.” 42 U.S.C. § 16919.
- NSOR was developed to fulfill the requirements of the Lychner Act (42 U.S.C. 14072). For its creation, it was necessary to link data in NSOR with an offender’s criminal history record maintained in the Interstate Identification Index, which could only be accomplished by requiring the FBI number. SORNA does not have these specific requirements for NSOR. Therefore, the FBI changed the FBI number field from mandatory to optional in October 2007, based on the recommendation of the NCIC Advisory Policy Board.
- Of the 2,727 investigations that had been closed, the USMS had arrested 2,024 (68 percent) of these fugitives, and 688 (23 percent) had been cleared through other means, including arrests by another agency, dismissed, or purged. In addition, we excluded 15 fugitives from our analysis because they had multiple warrants and we could not confirm that they were fugitives during the time period of our analysis.
- In contrast, NSOR is a database in the FBI’s NCIC system that is populated with data that is extracted from each of the states’ sex offender registries.
- Of the 2,727 investigations that had been closed, the USMS had arrested 2,024 (68 percent) of the fugitives and 688 (23 percent) had been cleared through other means, including arrests by another agency, dismissed, or purged. In addition, we excluded 15 fugitives from our analysis because they had multiple warrants and we could not confirm that they were fugitives during the time period of our analysis. Also, there were 77 that we could not locate and 15 were listed as incarcerated.
- We conducted our analysis on a draft of the guidelines because the SMART Office did not issue the final guidelines until July 2008, after our fieldwork was completed. When the final guidelines were issued we reviewed them, along with additional material provided by the SMART Office, to ensure that all relevant changes to the final guidelines were factored into our analysis.
- The Advisory Policy Board, composed of 33 representatives from criminal justice and national security agencies throughout the United States, meets twice each calendar year to discuss issues pertaining to NCIC and to make recommendations for improving NCIC.
- If state or local law enforcement requests USMS assistance for an investigation based on its own warrant, the USMS “adopts” the warrant and opens an investigation based on information contained in the state warrant.
- 42 U.S.C. §16941(a) states that the “Attorney General shall use the resources of Federal law enforcement, including the United States Marshals Service, to assist jurisdictions in locating and apprehending sex offenders who violate sex offender registration requirements.”
- In addition, since SORNA was enacted the FBI has initiated one investigation and made one arrest for failure to register or update a registration.
- The reasons for the declinations are summarized in Table 6 later in this report.
- On February 23, 2007, the USMS Office of General Counsel issued guidance to assist Deputy Marshals in investigations of fugitive sex offenders. The guidance provided a description of the new federal registration violation (18 U.S.C. 2250), including a description of the elements of a violation of SORNA and of the evidence necessary to prove that an individual violated the law. The guidance also included an overview of the decision process by which offenders will be charged and prosecuted.
- The stated reasons for declination were provided by the USAOs to EOUSA. We did not conduct an independent evaluation of the case files to verify the reasons stated for declination.
- The Regional Fugitive Task Forces reduce the number of violent fugitives at large by promoting cooperation among federal, state, and local law enforcement agencies. The USMS Task Force Operations Chief said that USMS managers described the Regional Fugitive Task Forces as “force multipliers” that are more effective than any individual agency because they combine resources from many agencies.
- Operation FALCON III took place the week of October 22 - 28, 2006, and covered the eastern half of the United States, focusing on some of the country’s most dangerous sex offenders and gang members. The USMS reported 971 individuals were arrested for not registering as sex offenders.